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Burkholder v. Department of Agriculture

Commonwealth Court of Pennsylvania

July 12, 2019

James E. Burkholder d/b/a Whispering Spring Kennel, Petitioner
v.
Department of Agriculture, Respondent

          Argued: April 11, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge (P) HONORABLE CHRISTINE FIZZANO CANNON, Judge.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE.

         James Burkholder, d/b/a Whispering Spring Kennel, petitions for review of an adjudication of the Secretary of Agriculture that imposed a $40, 000 civil penalty on Burkholder for not meeting the standards applicable to a commercial kennel. Burkholder contends that the Secretary erred because he has never operated a commercial kennel but, rather, a Class IV kennel, for which he was properly licensed. Burkholder concedes that he exceeded the limits in his license for number of dog transfers, but he contends that the Secretary erred in holding that this violation automatically converted his kennel to a commercial kennel subject to a different set of regulatory standards. Agreeing that the Dog Law[1] did not authorize the sanction imposed, we reverse and remand.

         On December 18, 2017, on behalf of the Department of Agriculture's (Department) Bureau of Dog Law Enforcement (Bureau), Christopher Seiple did an unannounced inspection of Burkholder's Whispering Spring Kennel. At the time of the inspection, Burkholder held a noncommercial Class IV kennel license and had applied for a Class III kennel license for 2018. Section 206(a) of the Dog Law provides that a "Kennel Class IV" license holder is authorized "[t]o keep or operate a private kennel, pet shop-kennel, research kennel, rescue network kennel, dealer kennel or kennel for a total of 151 to 250 dogs of any age during a calendar year--$400 per year." 3 P.S. §459-206(a). A "Kennel Class III" license holder is authorized "[t]o keep or operate a private kennel, pet shop-kennel, research kennel, rescue network kennel, dealer kennel or kennel for a cumulative total of 101 to 150 dogs during a calendar year -- $300 per year." Id. Seiple found Burkholder's facilities fully complied with the Class IV kennel licensing standards.

         When Seiple discovered that Burkholder had transferred 62 dogs over the course of calendar year 2017, Seiple reinspected the kennel, using the licensing standards for a commercial kennel. Seiple concluded that Whispering Spring Kennel did not meet the exacting standards imposed upon a commercial kennel. Accordingly, on December 19, 2017, Seiple issued a "Notice of Violation of Regulations under this Act," listing 16 ways in which Whispering Spring Kennel did not comply with the standards for a commercial kennel. This Notice gave Burkholder until February 28, 2018, to come into compliance with the requirements for a commercial kennel.[2]

         On March 7, 2018, Seiple did a follow-up inspection and found that Whispering Spring Kennel had not addressed the 16 items listed in the December Notice. Accordingly, on March 16, 2018, the Department initiated an enforcement action against Burkholder by issuing a "Proposed Adjudication and Assessment of Administrative Penalty" to Burkholder, citing the following 11 provisions of Section 207 of the Dog Law and related regulations pertaining to commercial kennels:

A. 3 P.S. §459.207(h)(5) Wardens were unable to verify a written program of veterinary care.
B. 3 P.S. §459.207(i)(1) Wardens observed a few primary enclosures that did not meet the minimum space requirements for the dogs housed within.
C. 3 P.S. §459.207(i)(3)(i) Wardens observed that several dogs over 12 weeks of age were being housed on metal strand flooring.
D. 3 P.S. §459.207(i)(4) Wardens noted all primary enclosures housing adult dogs over 12 weeks of age in the kennel were not provided unfettered clearance to an exercise area.
E. 3 P.S. §459.207(i)(6)(i) Wardens noted all primary enclosures housing adult dogs over 12 weeks of age in the kennel were not provided unfettered clearance from their primary enclosure to an exercise area.
F. 3 P.S. §459.207(i)(6)(ix) Wardens noted all primary enclosures housing adult dogs over 12 weeks of age in the kennel did not have an exercise area on ground level with solid and maintainable flooring.
G. 3 P.S. §459.207(i)(6)(x)(A) Wardens noted all primary enclosures housing dogs over 12 weeks of age in the kennel did not have access to an outside exercise area.
H. 3 P.S. §459.207(i)(8) Wardens were unable to verify veterinary records for all dogs on the premises. I. 7 Pa. Code §28a.2(b) A written certification under the signature and seal of a professional engineer was not present.
J. 7 Pa. Code §28a.2(c) Without a written certification [from] an engineer, this warden was unable to make the minimum inspection of assuring that the proper mechanical ventilation, auxiliary ventilation, or humidity control system was installed or operational.
K. 7 Pa. Code §28a.2(e) Without a written certification from an engineer, it was unknown to this warden if a proper mechanical ventilation system is installed to meet the standards required by this chapter.

         Proposed Adjudication and Assessment of Administrative Penalty, 3/16/2018, Certified Record, Item No. 1 at 1-2 (C.R.__); R.R. 176a-177a. The Proposed Adjudication alleged a violation of Section 207(a.1) of the Dog Law, [3] which prohibits a kennel from operating without an appropriate license issued under Section 206.

         The Proposed Adjudication explained how the proposed penalty was calculated:

WHEREFORE, pursuant to its Authority under Subsection (2)(1) of Section 903(a) of the Dog Law (3 P.S. §459-903(a)(2)(i)) in determining the final assessed administrative penalty against Burkholder, the PDA hereby proposes to impose an amount of $500 per day for one combined offense, for 80 days (December 18, 2017, through March 7, 2018 (follow-up inspection), or $40, 000.00 against Burkholder for the violations described above.
If you choose to appeal this determination you should proceed as set forth in Section C below.

C.R. Item No. 1 at 4; R.R. 203a (emphasis added). Consistent with the Proposed Adjudication's instructions in Section C on how to appeal, Burkholder filed a "Notice of Appeal and Request for Hearing." C.R. Item No. 2 at 2; R.R. 2a.

         At the hearing, Seiple testified in support of the Proposed Adjudication. He explained that only a commercial kennel can transfer more than 60 dogs during a calendar year. Whispering Spring Kennel transferred 62 dogs in 2017 even though it did not have a commercial license. Seiple acknowledged that his inspection showed that the facilities were "fine that day." Notes of Testimony, 7/17/2018, at 25 (N.T.__); R.R. 29a. But for exceeding the annual limit on dog transfers, Whispering Spring Kennel complied with the standards for a Class IV Kennel. Id. However, Whispering Spring Kennel did not meet the standards for a commercial kennel, in that it lacked certain engineering certifications, solid flooring and appropriate veterinary records. It was on this basis that the Bureau imposed the administrative penalty of $40, 000.

         Kristen Donmoyer, Director of the Bureau of Dog Law Enforcement, testified that the commercial kennel license was created in 2008 to address the health concerns of kenneled dogs. In her view, for a noncommercial kennel to operate as a commercial kennel constituted a serious violation. Donmoyer explained that in "December, we typically go to kennels that we feel have historically been close to … going over" the limit of 60 dog transfers. N.T. 79; R.R. 83a. This is why the Department inspected Burkholder's kennel so late in the calendar year. Donmoyer explained that the Department's sanctions were necessary to protect the health of dogs in commercial kennels; to protect members of the public who purchase dogs; and to be fair to the 86 commercial kennels in Pennsylvania "that are regulated and doing things the right way." N.T. 86; R.R. 90a.

         Donmoyer explained that if Burkholder was interested in downsizing his operation, he could have closed his kennel; waited a year; and then reopened the type of kennel he wanted. Instead, four puppies were born on December 7, 2017. Donmoyer testified that as of the date of the hearing, the Department considered Whispering Spring Kennel to be a commercial kennel.

         Burkholder testified on his own behalf. In 2017, he held a noncommercial Class IV kennel license. This allowed him to hold up to 250 dogs of any age. He applied for a noncommercial Class III kennel license for 2018, which would limit the total number of dogs to 101 to 150 during the calendar year. The only way to downsize was to transfer dogs, and 12 of the 62 transfers had been made to a rescue ...


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